B.P. Vijay and Others vs Umesh

K.N. Phaneendra, J.—The petitioners who are arrayed as accused Nos. 2 to 7 in C.C. No. 472/2012 pending on the file of J.M.F.C., Shorapur, have preferred these petitions seeking quashing of the said criminal proceedings registered against them for the offences punishable under Sections 468, 471, 192, 195, 420, 427 r/w Section 149 of Indian Penal Code.

The learned counsels appearing for the petitioners strenuously contends that the complaint is not at all maintainable against these petitioners as they were not the persons who were in the helm of affairs at the relevant point of time as alleged by the complainant. Further, the learned Magistrate has not looked into that certain offences alleged were all barred by limitation for the purpose of taking cognizance. It is also contended that the petitioners are the public servants working in different capacities in the Government Offices and the allegations are that while discharging their duties as public servants they have created and concocted certain documents in order to grab the property of the complainant, therefore Section 197 of Cr.P.C. comes into play. Without their being any sanction order, petitioners could not have been prosecuted by the complainant and the learned Magistrate has committed serious error in taking cognizance and issuing process against the petitioners herein.

Per contra, the learned counsel for the respondent submitted that all the said factual and legal aspects can be raised before the Magistrate by the accused at the relevant point of time by seeking their discharge. Therefore, at this stage, the Court cannot pass any orders quashing the entire proceedings at the threshold. The respondent''s counsel submits that all the petitions are devoid of merits and liable to be dismissed.

In the above said background, this Court has to see whether the petitioners have made out any reasonable or substantial grounds to quash the entire proceedings at the threshold. It is well recognized principle of law, as laid down by the Hon''ble Apex Court in the case of State of Haryana and others Vs. Ch. Bhajan Lal and others, , which is being consistently followed by the Hon''ble Apex Court as well as several High Courts. Therefore, I feel it is just and necessary to quote the guidelines enunciated in the said decision by the Hon''ble Apex Court. The Hon''ble Apex Court has laid down certain guidelines though not they are rigid formulae to give an exhaustive list but they are certainly guidelines that those are accepted by the Courts and followed while dealing under Section 482 of Cr.P.C. which are as follows:

"i) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

ii) Where the allegations in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

iii) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

iv) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

v) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

vi) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

vii) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

If broadly looked into the complaint, if any one of the guidelines as stated above are attracted then only the Court can exercise its powers under Section 482 of Cr.P.C. to quash the entire proceedings. In this back ground, now let me consider the facts of this case as enumerated in the complaint.

The cause-title of the complaint shows all the accused persons i.e., accused Nos. 1 to 7 are the public servants. Accused No. 1 is the Chief Executive Officer, Yadgir, accused No. 2 is the Assistant Commissioner, Yadgir, accused No. 3 is the Tahasildar, accused No. 4 is the Deputy Tahasildar, accused No. 5 is the Taluka Executive Officer, accused No. 6 is the Panchayat Development Officer and accused No. 7 is the Secretary of the Gram Panchayat. It is alleged in the complaint that the complainant and his father are the absolute owners of land in Sy. No. 164/A measuring 5 acres 31 guntas of Hunsagi Taluk, Shorapur, and they still continues to be the owners of the said land. It is specifically stated that accused persons are in no way concerned to the said land and they have no right to give away the plots to any persons. The accused persons have acted illegally by using official powers with an intention to involve the complainant and his family members in the litigation. It is admitted that there are several civil suits and writ petitions are pending between the complainant''s father and the accused persons and also other persons.

In this background, it is alleged that the accused persons by misusing the official powers created some documents and prepared plots, maps and further given Hakku Patras to several persons in the said property. The accused persons are the officers who have made alteration and manipulation of the public documents as per their own whims and fancies with an ulterior motive to cause hardship and inconvenience to the public. Therefore, activities of the accused persons are very harmful and injurious to the public. The public are also put to irreparable hardship and inconvenience. It is further alleged that, in the pending suit between the parties it has been brought to the notice of the Civil Court by the Tahsildar i.e., one of the accused that the government has purchased the land bearing Sy. No. 164 and prepared the plots and allotted to the Asraya Scheme beneficiaries in the year 1991-92. The said statement given by the accused before the civil Court is false and it amounts to offence punishable under the provisions of Indian Penal Code. The complainant further stated that about 15 years back Hakku Patras have been given by the Tahasildar to several persons in the property belonging to the complainant. This was made known through the reply notice to the legal notice issued by the complainant to the government officials. It is further alleged that documents which were in the custody of the accused are manipulated, altered and forged. It is the further case of the complainant that a blank agreement and form No. ''D'' along with the agreement were also concocted by the accused persons and as per the information given by accused No. 5 it clearly goes to show that during the period of alleged agreement, the officer namely Devanna was not working as a B.D.O and the letter dated 24.08.2012 issued by accused No. 5 was also produced for consideration of the Court. By pleading the above said allegations, the complainant produced some documents pertaining to the year 1991-1992, i.e., alleged blank agreement and form No. D on such allegations and documents complainant prayed for taking action against accused persons. The learned Magistrate recorded sworn statement of the complainant. There is no need to reiterate the contents of sworn statement, because the complainant cannot say more than anything other than what he has stated in the complaint averments. The Court has to see on the basis of the complaint averments, whether a prudent man can come to the conclusion that the offences alleged have been made out particularly against accused persons. Admittedly, at paragraph-9 it is categorically stated that documents were concocted and Hakku Patras were issued about 15 years back by the concerned officials who were working in the government offices, at that time, on the allegations that complainant''s father has executed blank agreement in the year 1991-92 along with form No. D and thereafter documents have been concocted and Hakku Pathras were issued. It is the allegation against accused No. 5 that he gave information pertaining to the documents and he gave such information in the civil suit in O.S. Nos. 95/2012 and 96/2012. Therefore, on such basis, it appears complaint has been lodged. On plain reading of the complaint averments, it clearly disclose that the offence according to the complainant under Section 468, 471, 420, 427 of IPC were committed by the concerned government officials who were working in the different offices about 15 years back and it is not specifically alleged that present officers who are made as accused persons are personally involved in preparing or concocting the said documents. Further added to that, even to take action under Sections 195 and 192 of IPC, the offences should have been committed by the person during the pendency of the civil or criminal proceedings before the civil Court. The provisions of section 195 gives communication that:

"A person who gives or fabricates false evidence intending thereby to cause, or knowing it to be likely that he will thereby cause, any person to be convicted of an offence which by the law for the time being in force is not capital, but punishable with imprisonment for life or imprisonment for a term of seven years or upwards, shall be punished as a person convicted of that offence would be liable to be punished." 8. Here, whether mere statement given by the Tahsildar/accused No. 5 amounts to giving false evidence intending to implicate any person to be convicted for any offence was not made known in the complaint itself. There are absolutely no ingredients of Section 195 of IPC. Sections 191 and 192 of IPC are also offences referable for giving false evidence before the Court and fabricating the false evidence before the Court. According to the complainant, accused No. 5-Tahasildar has given false evidence before the civil Court and fabricated false evidence before the Court. If at all such evidence is given before the Civil Court by accused No. 5, that has to be thrashed out in the same civil Court while dealing with the matter. If the Court comes to the conclusion that such information or evidence furnished by any of the parties to the suit or appeals or any attempt has been made to fabricate the document or giving false evidence, then the Court has to refer the complaint to the competent jurisdictional Magistrate to take appropriate action. Therefore, it is too premature for the complainant to lodge complaint, on the other hand, he would have requested the civil Court for taking proper action. Instead of doing that, the complainant has rushed to the criminal Court in order to lodge a complaint against the accused persons.

It is alleged that blank agreement and form No. D was concocted, the said documents are marked before the Trial Court as Ex. C7 which is made available to the Court. The learned Magistrate perhaps not at all perused and looked into the said document. But this document clearly disclose that the document was entered into between Block Development Officer, Shahapur, on behalf of the Government and father of the complainant. According to the complainant, this document has been concocted in the year 1991-92. Therefore, it is incumbent upon the complainant to find out who was the actual person concocted this document in order to lay claim against such persons and to bring home the guilt of such persons before the Court. Therefore, by considering the above said allegations, in the complaint itself, it does not disclose particular offence so far as the present accused persons are concerned, admittedly, who were not in the helm of affairs when the alleged document came into existence or when Hakku Patras alleged to have been concocted by the concerned officials. Therefore, it is not that the allegations made in the complaint should constitute offences but it is imperative that the offences are constituted not against vacuum but it should be against particular person or persons i.e., accused. Even on reading of the complaint, if it broadly constitute any offence that itself is not sufficient to proceed against any persons unless it is shown that the offences actually alleged to have been done by the accused persons and there was connection to the accused persons. If that is not there, it cannot be said that allegations made in the complaint constitute any offence against the accused persons.

Even the allegations in the complaint are translated into evidence and remain uncontroverted, it should be sufficient for the Court to convict the accused persons. A complaint before the Magistrate cannot be called as FIR because there is lot of distinction between FIR and the complaint. So far as the first information report is concerned, it need not be an encyclopedia, it need not contain with regard to the offence being committed by the accused persons because of the simple reason FIR gives rise only to initiation of criminal proceedings so as to enable the investigating agency to find out the truth or falsity of the averments in the first information report by means of recording the statement of the witnesses and the circumstances and find out the real culprit. So far as the complaint is concerned, it should contain meticulously all the ingredients of offences and supporting material against a particular accused because of the simple reason on the basis of the complaint averments itself the Court is supposed to take cognizance, wherein the Court would not take cognizance only on the basis of the contents of first information report against the accused persons. Therefore, it is incumbent upon the complainant to meticulously and vividly state important ingredients of the offences alleged against the accused and to show in the complaint how accused individually are connected with the offences alleged against them. In the absence of that, at any stretch of imagination, it cannot be said that allegations are so meticulous and inherently probable to take action. Therefore, the guidelines under 1 and 5 as stated in Bhajan Lal''s case that the allegations made in the FIR or in the complaint, if they are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused, the said guideline is aptly applicable to the present facts and circumstances of the case.

The allegations with regard to the blank agreement and Hakku patras it is nowhere categorically and specifically stated that these Hakku Patras are the documents entered into by the accused persons with the father of the complainant at any point of time and it is not specifically mentioned that Hakku Patras were actually issued by the present accused persons in favour of anybody. It goes without saying that the incident is doubtful as the offences under Sections 420, 468 and 471 of IPC admittedly happened about 15 years back. Therefore, the complainant ought to have made it clear that these accused persons were working in the said offices at the relevant point of time and they were actually involved in concocting these documents. In the absence of such elucidation of facts in the complaint, it cannot be said that allegations made in the complaint are referable to the commission of offences by the accused persons. Therefore, I have absolutely no hesitation to hold that the learned Magistrate has committed serious error in taking cognizance, he has not looked into the complaint averments meticulously and he has not looked into documents and has not analyzed the factual matrix and mechanically mere referring to the facts of the case has taken cognizance and issued process against the accused.

Last but not the least, it is raised that Section 197 of Cr.P.C. impose responsibility on the complainant to take prior sanction before prosecuting the accused persons. Therefore, of-course before taking cognizance, the Court has to see whether the allegations made in the complaint if it is translated into the evidence attract the said provisions, whether there are any allegations made in the complaint clearly indicate that the public servant who are in the helm of affairs while discharging their duties as such public servants have committed any offence and in that context, whether sanction under Section 197 is absolute requirement. But in this particular case there is no need for me to observe in detail on the said aspect is concerned because of the simple reason I am of the opinion that allegations made in the complaint itself are not sufficient to constitute any offence particularly against accused. Nevertheless, it is the guideline to the Magistrates whenever complaints have been lodged against public servants it becomes fundamental duty of the Court to examine the facts in detail whether the sanction is absolute requirement at the initial stages before taking cognizance or whether said issue can be deferred to be considered. Later, the Magistrate has to apply his mind and give reasons at the time of taking cognizance. Therefore, in this particular case, the learned Magistrate has failed to consider this aspect.

Looking from any angle, in my opinion, the complainant has not made out any substantial ground either to take cognizance against the accused persons or call upon them to explain the allegations because those allegations are absolutely not referable to them at all, but they are referable to persons who are in the helm of affairs at the time of commission of alleged offences. Therefore, the above grounds are sufficient to quash the entire proceedings.

Accordingly, the following order is passed:

The petitions are allowed. Consequently, the entire proceedings in C.C. No. 472/2012 pending on the file of JMFC Court, Shorapur, is hereby quashed, so far it relates to the petitioners are concerned.